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The Four Faces of Tort Law: Liability for Emotional Harm

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The Four Faces of Tort Law: Liability for Emotional Harm Marquette University Law School Marquette Law Scholarly Commons Faculty Publications Faculty Scholarship 1-1-2007 The ourF Faces of Tort Law: Liability for Emotional Harm John J. Kircher Marquette University Law School, [email protected] Follow this and additional works at: http://scholarship.law.marquette.edu/facpub Part of the Law Commons Publication Information John J. Kircher, The ourF Faces of Tort Law: Liability for Emotional Harm, 90 Marq. L. Rev. 789 (2007) Repository Citation Kircher, John J., "The ourF Faces of Tort Law: Liability for Emotional Harm" (2007). Faculty Publications. Paper 33. http://scholarship.law.marquette.edu/facpub/33 This Article is brought to you for free and open access by the Faculty Scholarship at Marquette Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. THE FOUR FACES OF TORT LAW: LIABILITY FOR EMOTIONAL HARM JOHN J.KIRCHER* I. INTRODUCTION A short time after matriculating, a new law student first encounters the truism that the life of the law is not logic.' Soon thereafter, during that person's first semester study of torts, he or she may inevitably come to the conclusion that another sage observation2 is also true: "If the law supposes that,... the law is a ass-a idiot.", The coalescence of both observations in respect to one situation may come, as it did with me, on discovering the manner in which the law of torts deals with cases in which the victim of tortious conduct sustains emotional harm as the result of that conduct. (Of course, my reaction may have been due in large part to the fact that I married a psychologist as well.) Nevertheless, the law deals with emotional harm in relation to three distinct torts: Assault, Intentional Infliction of Emotional Distress, and Negligent Infliction of Emotional Distress. In a fourth area of tort law, Damages, another matter is often considered as well. And that matter is referred to as "parasitic" emotional harm-the harm produced as a byproduct of some physical injury. Uniformity is not the hallmark of the law with respect to these four areas. In this Article I will analyze how tort law deals with emotional distress in each of the four areas. Inconsistencies in each area will be noted-both as to the application of the law generally within a given jurisdiction and also as to jurisdictional differences. Inconsistencies among the four areas also will be noted. The Article will conclude with my suggestions for reform. * Professor of Law, Marquette University Law School. The author extends his special thanks and deep appreciation to his former colleague Professor Christine M. Wiseman, Provost at Loyola University Chicago, for her valuable comments on an earlier draft of this Article. He also expresses his appreciation to his research assistants, Alexis Boyd and Jessica Swietlik of the Law School Class of 2006 for their significant contributions to this Article. 1. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (Dover Publ'ns 1991) (1881). 2. CHARLES DICKENS, THE ADVENTURES OF OLIVER TWIST 399 (Oxford Univ. Press 1981) (1838). MARQUETTE LAW REVIEW [90:789 II. ASSAULT A. Early History The first form of protection the common law afforded against tortious infliction of emotional distress came through the action for assault under the ancient writ of trespass. The seminal British case on the subject involved a woman whose husband operated a tavern.3 A would-be patron took offense to the fact that the establishment was closed and swung his ax at the bar owner's wife when she advised him of the closure. He missed his mark. The woman's luck, the assailant's drunkenness, or both, saved her from any physical injury or death. Nevertheless, the court held that "[t]here is harm done and a trespass for which [the woman's husband] shall recover damages since he made an assault upon the woman, as has been found, although he did no other harm."4 Protected was the victim who suffered apprehension of impending, wrongful, physical contact by the assailant. An assault has been characterized as an unlawful threat to do bodily harm to another individual coupled with the ability, when the threat was made, to carry out that threat.5 The victim need not sustain any physical harm as a prerequisite to recovery. Nor did the emotional harm sustained need to be "severe." Prosser probably best described the tort: "Since assault, as distinguished from battery, is essentially a mental rather than a physical invasion, it follows that the damages recoverable for it are those for the plaintiff's mental disturbance, including fright, humiliation and the like, as well as any physical illness which may result from them."6 B. The Restatement The Restatement of Torts sets forth the elements of the tort of assault as follows: An actor is subject to liability to another for assault if 3. I de S et ux v. W de S, Y.B. 22 Edw. III, f. 99, pl. 60 (1348). 4. Id. Of course, at that time women could not sue in their own right and the action was brought by the husband as if the tortfeasor caused harm to the husband's chattel. 5. Dahlin v. Fraser, 288 N.W. 851, 852 (Minn. 1939). 6. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 10, at 43 (5th ed. 1984) (footnote omitted). 2007] FOUR FACES OF TORT LAW (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.' Definition of the terms used by the Restatement is important. The word "intent" is used throughout the Restatement to mean that the actor desires the consequences of his or her act or believes those consequences are substantially certain to follow.' Thus, to commit an assault, in the Restatement's view, the actor must want to cause harmful or offensive contact with a person or merely desire to put a person in apprehension of such contact. Even if the actor has no such desire as to the specific victim, intent may be found if the actor believes such a consequence is substantially certain to follow the act. For example, one who knows about firearms would understand that firing a shotgun at an intended victim who is in a crowded room may also cause others in the room to be hit by the shotgun projectiles. Thus, others standing near the actor's target may be placed in apprehension that they too will be struck, and the actor should be able to anticipate that they may be apprehensive of contact when he points the weapon and announces his intent. The foregoing example also brings up the subject of transferred intent. As noted above, the Restatement requires that the actor's intent must be directed at the "person of the other or a third person."9 Assault is one of five, old common law torts under the writ of trespass as to which the doctrine of transferred intent applies.'" Thus, if the actor's intentional conduct is directed at one person and another is thereby affected, liability to the non-intended victim may also attach. To recover for an assault, the one making the claim must establish that he or she was placed in imminent apprehension of a harmful or offensive contact as a result of the actor's conduct. While some might equate "apprehension" with fear, such is not the case. What constitutes apprehension? According to the Restatement: 7. RESTATEMENT (SECOND) OFTORTS § 21(1) (1965). 8. Id. § 8A. 9. Id. § 21(1). 10. KEETON ET AL., supra note 6, § 9, at 38. MARQUETTE LAW REVIEW [90:789 In order that the other may be put in the apprehension necessary to make the actor liable for an assault, the other must believe that the act may result in imminent contact unless prevented from so resulting by the other's self-defensive action or by his flight or by the intervention of some outside force." Thus, an action for assault protects an individual's "interest in freedom from apprehension of a harmful or offensive contact."12 An assault could be found when the proverbial ninety-nine pound weakling comes up to a NFL linebacker, makes a fist, threatens to punch the linebacker in the jaw and attempts that feat. There would be an assault even though the linebacker had absolutely no fear of being hit, let alone of being hurt by the weakling. The Restatement's Reporter explains: It is not necessary that the other believe that the act done by the actor will be effective in inflicting the intended contact upon him. It is enough that he believes that the act is capable of immediately inflicting the contact upon him unless something further occurs. Therefore, the mere fact that he can easily prevent the threatened contact by self-defensive measures which he feels amply capable of taking does not prevent the actor's attempt to inflict the contact upon him from being an actionable assault. So too, he may have every reason to believe that bystanders will interfere in time to prevent the blow threatened by the actor from taking effect and his belief may be justified by the event. Bystanders may intervene and prevent the actor from striking him. None the less, the actor's blow thus prevented from taking effect is an actionable assault. The apprehension which is sufficient to make the actor liable may have no relation to fear, which at least implies a doubt as to whether the actor's attempt is capable of certain frustration.
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